2015 Chestnut Street, Camp Hill, PA Phone: ,

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1 2015 Chestnut Street, Camp Hill, PA Phone: , September 19, 2017 Filed electronically at Docket No. EPA-HQ-OW Comments of ARIPPA on the U.S. Environmental Protection Agency's and U.S. Army Corps of Engineers' Proposed Definition of "Waters of the United States" Recodification of Pre-existing Rules 82 Fed. Reg (July 27, 2017) ARIPPA appreciates the opportunity to comment on the U.S. Environmental Protection Agency's ( EPA ) and the U.S. Army Corps of Engineers' ( Corps ) (together, "the Agencies") proposed rule: Definition of "Waters of the United States" Recodification of Pre-existing Rules. 82 Fed. Reg (July 27, 2017) ("Proposed Rule"). ARIPPA supports the Agencies' proposal to rescind the Clean Water Rule: Definition of "Waters of the United States," 80 Fed. Reg. 37,054 (June 29, 2015) ("2015 Rule"), and codify the status quo that is now being implemented under the U.S. Court of Appeals for the Sixth Circuit s stay of the 2015 Rule. This action will correct a problematic regulation that impermissibly expanded federal jurisdiction of water bodies and ignored the careful balance between federal and state water regulation and constitutional limits on federal authority. ARIPPA is a non-profit trade association representing the interests of the coal refuse to energy industry. Its membership includes electric generation facilities that utilize environmentally-friendly circulating fluidized bed (CFB) boiler technology to convert coal refuse into electricity. These plants are located principally in or near the

2 anthracite and bituminous coal regions of Pennsylvania and the bituminous coal region of West Virginia. According to a report prepared by Econsult Solutions, a Philadelphia-based economic consulting firm, the combined economic and environmental benefit of the coal refuse to energy industry to Pennsylvania alone totals about $780 million per year. The industry directly and indirectly supports 3,600 jobs with total earnings of more than $220 million per year. What sets these coal refuse-fired power plants apart is the critical role they play in environmental clean-up and remediation in coal regions by removing coal refuse piles from the landscape, cleaning up the air, land and water polluted by these piles, and protecting public health and safety without shifting the cost of these activities to public sources. Coal refuse is a legacy of previous coal mining and consists of low quality coal mixed with rock, shale, slate, clay and other material. It was discarded as waste during the original coal extraction process and randomly disposed in piles near mine sites and the towns that developed near those sites. CFB technology with limestone injection can effectively combust coal refuse from past mining activities to respond to the formidable environmental challenges posed by the millions, likely billions, of tons of coal refuse deposited throughout Pennsylvania, and other historical coal-mining regions. To date, the coal refuse to energy industry in Pennsylvania has removed and used as fuel more than 200 million tons of coal refuse, restored more than 1,200 miles of streams and reclaimed more than 7,000 acres of mining affected lands. The environmental value of this industry to Pennsylvania has been quantified on average at $26 million per year. Page 2

3 The definition of "waters of the United States" is important to ARIPPA. In advance of any land disturbances, like abandoned mine reclamation work, ARIPPA members must obtain multiple environmental licenses and permits, expending significant resources on engineering, treatment and mitigation measures. It is therefore vital that the definition of waters of the United States provide clarity to the regulated community, place reasonable and well-defined limits on federal authority, and unambiguously exclude on-site water management features from CWA jurisdiction. The 2015 Rule failed to provide such clarity and limits and should be rescinded. Notably, the 2015 Rule's provisions are, in various respects, beyond the Agencies' statutory authority, inconsistent with Supreme Court precedent, and contrary to the goals of the CWA, including the Act's goal to "recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution." 33 U.S.C. 1251(b). The Agencies failure to seek input from state and local entities during the development of the 2015 Rule contributed to these legal flaws, as well as the rule s lack of clarity. Of particular importance to ARIPPA is the regulatory uncertainty that flows from the 2015 Rule's lack of clarity on key terms and definitions, such as "adjacent," "floodplain," "ordinary high water mark," dry land, and "significant nexus." Moreover, by allowing for jurisdiction over remote, isolated features, ephemeral washes and onsite water management features, the 2015 Rule improperly reads the word "navigable" out of the statute and implicates significant constitutional concerns about the appropriate scope of federal authority. Furthermore, nothing in the record created Page 3

4 during the 2015 rulemaking process dictated the adoption of such a sweeping definition of "waters of the United States." ARIPPA members also have a major concern as to the economic impacts the existing rule will have on permitting and remining of coal refuse disposal sites. Many of these coal refuse sites would have impacted surface waters by the coal refuse being placed in swales, drainage ways, and streams in the past when there were no laws or regulations controlling these activities. The proposed rule would recodify the prior-2015 rules which were used in developing the mining rules. Today, these sites are sources of fuel for ARIPPA member plants. As such, the sites are remined under the State delegated SMCRA Permits and State Delegated EPA NPDES Program. These sites are being eliminated as sources of mine drainage, sedimentation, and air pollution. This is accomplished through the beneficial use of coal combustion residuals in mine land reclamation (under Pennsylvania s Beneficial Use Program) and as part of remining of sites with pollutional discharges (covered by EPA regulations at 40CFR Part 434). Laws and regulations should encourage not discourage this type of activity. To immediately address these concerns, ARIPPA supports the proposed regulatory changes by the Agencies to rescind the 2015 Rule and recodify the regulations in place immediately prior so that the Code of Federal Regulations accurately reflects the applicable regulations. Since the Sixth Circuit's October 2015 issuance of a nationwide stay, the Agencies have been currently implementing the regulations defining WOTUS that were in effect immediately before the 2015 Rule. The Page 4

5 proposed action would simply continue that practice and recodify the status quo that has been in place for decades. Finally, ARIPPA supports the Agencies' efforts to undertake a substantive rulemaking to reconsider the definition of "waters of the United States." Although codifying the status quo is important to ensure clarity and regulatory certainty in the near term, there are many issues with the current regulations and guidance documents that should be addressed through a new rulemaking. ARIPPA will work with the Agencies as they develop a rulemaking that clearly articulates the extent of federal CWA authority while providing regulatory clarity for businesses and proper recognition of state authority to manage water quality as Congress intended. Thank you for this opportunity to provide comments. Please call me if you have any questions or require additional information. Sincerely, George Ellis Executive Director gellis@arippa.org Page 5